EPA, Not Federal Courts, Can Limit CO₂ Emissions

Federal courts cannot set limits on carbon dioxide from power plants in response to lawsuits claiming that this pollution causes negative health effects and environmental damage, the U.S. Supreme Court ruled last week. Regulating CO₂ is a job Congress reserved for the Environmental Protection Agency under the Clean Air Act, the court found.

The high court sided with five large utilities in a suit brought by several states and three nonprofit land trusts over the facilities’ emissions. The utilities—American Electric Power Co., Southern Co., Xcel Energy, Cinergy Corp., and the Tennessee Valley Authority—together release about 650 million tons of CO₂ per year. That’s a quarter of the CO₂ emissions from the U.S. electricity-generating sector.

Environmental groups also claimed victory in the court’s 8-0 ruling. “The Supreme Court strongly underscored EPA’s responsibility under the law to address climate pollution that threatens the health and well-being of our nation,” said Fred Krupp, president of the Environmental Defense Fund.

In the original case, California, Connecticut, Iowa, New York, Rhode Island, and Vermont claimed that the utilities’ emissions put health, public lands, and infrastructure at risk as a result of climate change. Two other states initially in the suit, New Jersey and Wisconsin, dropped out of the litigation.

The states and land trusts asked a federal trial court to cap each utility’s CO₂ emissions and lower these limits every year for a decade. After the trial court dismissed the suit, the U.S. Court of Appeals for the 2nd Circuit, based in New York City, determined that the case could continue until EPA establishes regulations to limit CO₂ releases from utilities. Under an unrelated court settlement, EPA is to propose such emission controls this year and finalize them by May 2012.

The utilities appealed the circuit court ruling. The Supreme Court heard the appeal in April.

Writing for the high court, Justice Ruth Bader Ginsburg said, “Congress delegated to EPA the decision whether and how to regulate carbon dioxide emissions from power plants.” This means federal courts can’t establish emission caps for utilities in response to claims that CO₂ is damaging to health and the environment, the decision said.

Michael B. Gerrard, director of the Center for Climate Change Law at Columbia Law School, said the Supreme Court left open a key legal issue: whether the Clean Air Act prevents environmental groups or others seeking limits on CO₂ emissions from suing utilities in state courts. Gerrard expects this type of suit to be filed in the wake of the high court’s decision.

Justice Sonia M. Sotomayor recused herself from the case, American Electric Power v. Connecticut. Before her appointment to the high court, Sotomayor was a member of the three-judge panel in the 2nd Circuit that heard the case, but she was not involved in reaching the appeals court’s decision.